Margaret Cunneen defends comments on child sex abuse allegations

By Paul Bibby

Updated10 July 2014 — 3:57pmfirst published at 3:02pm

The highly regarded NSW prosecutor who told Queensland authorities that a child sex abuse allegation against Scott Volkers was relatively “trivial” has staunchly defended the comments, saying she was referring to what a jury was likely to think, not her own opinion.

“I don’t resile from the advice at all,” Crown Prosecutor Margaret Cunneen, SC, told the royal commission into child sex abuse on Thursday.

"Prosecutor's shorthand": a live feed image as Margaret Cunneen gives evidence at the royal commission.

“I certainly don’t want to hurt any person who has suffered from those assaults by saying that - but that’s the human side of me. Being a barrister, one must follow the law.”

The royal commission’s ongoing hearings into child sex abuse in Australian swimming has heard that in 2004 the Queensland Director of Public Prosecutions elected not to continue pursuing child sex allegations against Mr Volkers on the back of advice from Ms Cunneen, who said there was “no reasonable prospect of a conviction”.

In her advice, Ms Cunneen expressed scepticism about a doctor’s finding that one of Mr Volkers’ alleged victims was suffering from major depression stemming from an alleged assault 14 years before, in which he touched her breasts.

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“Dr Cotter’s evidence seems in view of the trivial nature (relative to the nature and duration of most sexual assaults which come before courts) of the allegations, almost fanciful,” Ms Cunneen said in the advice.

"It is legitimate to consider whether 12-year-old swimmers even had breasts," her advice also stated.

But on Thursday Ms Cunneen categorically denied that this represented her own, personal opinion.

Rather it was “prosecutor’s shorthand” about the likely interpretation of the evidence by a jury.

“That is my opinion of the view a jury would form, given the usual robust submissions by defence counsel,” Ms Cunneen said.

“I’m called upon to give a full and frank and informed opinion about what would happen.

“I regard that the position would have been that the jury wouldn’t have [favourably] regarded this additional complaint … being so aged and being so relatively minor to cause such a massive mental health [breakdown].”

Regarding allegations that Volkers had rubbed the alleged victim's genitalia, bringing her to orgasm, Ms Cunneen expressed her concerns in her advice about "the unlikelihood a 13-year-old girl would have experienced an orgasm while being indecently assaulted".

"I have frequently seen occasions where male victims have had an orgasm while being sexually assaulted, and the best witnesses among them explain that, while the moment of orgasm was pleasurable, the sexual assaults and their contexts were ghastly.

"I have never before, in the many hundreds of sexual cases that have crossed my desk over 18 years, seen a female complainant who experienced orgasms during the assault."

Ms Cunneen, who chaired the recent NSW special inquiry into child sex abuse in Newcastle, said that she had never expected her “privileged advice” to go directly to the Queensland authorities, let alone be made public.

“It never crossed my mind that this privileged advice would end up in the hands of the complainants and to my deep and sincere regret, be something that caused them distress,” she said.

Nevertheless, she defended what she said.

“No, I don’t resile from it, of course bearing in mind that it was 2004 and there may be some considerations in relation to juries being more amenable in 2014, but we were probably only two-thirds of the way through the evolution in terms of the public knowledge and acceptance of child sexual assault cases then,” she said.

“I certainly don’t want to hurt any person who has suffered from those assaults by saying that, but that’s the human side."